Certificate of child custody in Indonesia certifies that you are the legal holder of a custody of a child, and therefore allows you to represent him/her inside and outside the court of law. Yup, inside and outside the court room. This term has a very broad meaning. Basically, as the holder, you are the legal representative of the child for his/her best interests. You may be considered as a guardian of the child. In order to secure the certificate for the child custody some terms and conditions applied under this situation.
The child is his/her parents’ responsibility until they reach legal age. In the event the marriage has been dissolved, Indonesia recognized custody-holder parent, and non-custody parent. In best practice, joint custody is also recognized and it must be set-out with a divorce settlement entered by both parents. The court loves this. They encourage you, the parents, to discuss the well-being of your child, even though you’re divorced. At Wijaya & Co, we always pay attention to details of our client’s case.
The court acknowledged the settlement reached during in-court mediation. The divorce verdict shall include the custody and parenting plan. According to Article 41 of 1974 Marriage Law stipulates that in the event the marriage dissolved by divorce, the parents have the obligation to nurture and educate the children to the best interests of their children. If there’s a dispute in regards to the custody, the court may decide the case. Remember the keyword: "best interests of the child." This should not be translated as a situation that you are the bread-winner in the family. That may help you doing your parental works to support the child financially but it may not win the custody. You may ruin your ex-spouse credibility by submitting evidence that she/he is committing sexual misbehaviour. Although, that thing may be bring the judges' attention and creates such a court-room drama, but it won't likely to win you the case.
In pursuing a custody of your child, I suggest you need to make sure you pay attention to your child's legal rights. Law number 23 of 2002 regarding Child Protection imposed the child's basic rights as follows:
- Every child has the right to acquire medical services and social security according to their physical, mental, spiritual, and social needs;
- When the child in the custody of his parents, guardian or any other party responsible for his/her custody, the child has the right protection from discrimination treatment, exploitation, either economically or sexually, abandonment, cruelty, violence, and torture, injustice, and other mistreatment. In the event the parents, guardian or care-giver committed any form of the above-mentioned treatment, the perpetrators must be imposed weighted-sentence.
- Every child has the right to be raised by his/her own parents, except if there is a reason and/or valid legal regulation that the separation is being done for the sake of child's best interests and shall be made as the last resort. In the event one parent has been decided by the court as the holder of child custody, she or he is not allowed to forbid his/her ex-spouse to meet the child. The custody holder parent must give the other parent a reasonable access of visitation.
The same legal reasoning also applicable to certificate of child custody for the child born out of wedlock. This one is specifically made for creating physical evidence of legal relationship between the mother and the child. One thing that must exist in this case: the child was born outside of illegitimate relationship. There's no legal marriage between the child's mother and the man who got her pregnant. Therefore, you need to conduct a DNA test. The consent from the biological mother must first be obtained before the proceedings is being initiated. Whatever you do, be nice. This is totally her statutory rights. You can't do it without her OK. Please contact me should you wish to discuss any further about this.
Our thanks to Mr. Asep Wijaya of Wijaya & Co for sharing this article!